Getting copyrights right

Chairman Bob Goodlatte (R-Va.) plans a hearing on Thursday before the House Intellectual Property subcommittee to pursue his worthy goal of copyright reform.

The hearing is called “A Case Study for Consensus Building: The Copyright Principles Project” and focuses on a group called the “Copyright Principles Project” that produced a white paper called “The Copyright Principles Project: Directions For Reform.”

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Goodlatte has a refreshing desire for less polarization in America’s debate on copyright reform, but I must note that the Copyright Principles Project is a strange kind of “consensus” on copyright — because it’s no consensus at all.

Why Were Creators Excluded?

There are no creators involved in the Copyright Principles Project at all! None. As in not one.

The Internet has democratized creativity, but this group of Big Tech and Big Media companies and the lawyers and academics who love them is about as undemocratic a “consensus” as any artist could imagine.

Creators are the most affected by the “Project’s” many proposed changes to copyright law. But creators were apparently not even considered as eligible to participate in discussions with these elites.

Any number of creators (including me) would have been glad to hash out ideas for reforms. Ideas we get from on-the-ground practical experience. Experience you won’t find in the ivory towers of academia or corporate corner offices.

A Small Example

Let me give you one small example from the many proposals — copyright registration and orphan works. Had they been included, photographers could have explained that they typically take hundreds of photographs in a single photo session. The registration recommendation in this report would require photographers to register each and every photograph with a government registry to protect against “orphaning”— the use of a copy of their works by someone who can’t seem to find them.

This registration idea has been around for quite a while. The pitch to artists is never from other artists — it’s usually pitched as a good thing because the Internet would unleash a torrent of untold riches if people could just find you. This must be someone’s idea of a joke, because if the Internet has unleashed anything on artists, it is not a torrent of people trying to pay us. It’s another kind of torrent—a Bit Torrent.

This registration issue is tricky — they can’t condition the right to copyright itself on registration because I’m told that would probably violate international law and land the U.S. in yet another arbitration (remember the Fairness in Music Licensing Act?). So a registration just allows your work to be exploited if the people who want to use the work can’t find you — even if they look really, really, really hard. That idea is something that any artist could have told the “Principles” elites was … well, incorrect. Had we been asked.

There are plenty of ways to find musicians, songwriters and recording artists right now. The problem isn’t that we can’t be found. The problem is that only the honest people want to look for us.

The Market Already Has A Real Consensus

The market has already produced a solution to this. Artists who want to be found have registered with Getty Images, ASCAP, Flickr, BMI, SESAC, SoundExchange or Deviant Art and can continue to do so. Who benefits, then, from this registration requirement?

Big Tech. A Google lawyer told the Copyright Office that Google was interested in millions of orphans. In these recommendations, the person doing the looking has no incentive to actually find the artist because they benefit economically by failing to find artists.